CONSTITUTION OF THE BERG-EN-DAL ESTATE (incorporating MOUNTAINDALE ESTATE)
HOME OWNERS ASSOCIATION A statutory Body Corporate established in terms of Section 29 of the Land Use Planning Ordinance, No 15 of 1985
ESTABLISHMENT IN TERMS OF STATUTE
STATUS OF THE ASSOCIATION
FINANCIAL YEAR END
10. DEALING WITH THE COMMON PROPERTY 11. CONTRACTS AND REGULATIONS 12. BREACH 13. CESSATION OF MEMBERSHIP 14. TRUSTEE COMMITTEE 15. REMOVAL AND ROTATION OF TRUSTEES 16. OFFICE OF TRUSTEE 17. FUNCTIONS AND POWERS OF THE TRUSTEE COMMITTEE 18. PROCEEDINGS OF THE TRUSTEE COMMITTEE 19. GENERAL MEETINGS OF THE ASSOCIATION 20. NOTICE OF MEETINGS 21. VENUE OF MEETINGS 22. QUORUM 23. AGENDA AT MEETINGS 24. PROCEDURE AT GENERAL MEETINGS 25. PROXIES 26. VOTING 27. OTHER PROFESSIONAL OFFICERS 28. ACCOUNTS 29. AUDIT 30. SERVICE OF NOTICE 31. INDEMNITY 32. PRIVILEGE IN RESPECT OF DEFAMATION 33. MEDIATION 34. ARBITRATION 35. AMENDMENT 36. DISSOLUTION 37. DOMICILIUM CITANDI ET EXECUTANDI
ESTABLISHMENT IN TERMS OF STATUTE The Berg-en-Dal Estate (incorporating Mountaindale Estate) Home Owners Association is constituted as a body corporate, in terms of Section 29 of the Land Use Planning Ordinance, No. 15 of 1985, in accordance with the conditions imposed by the Western Cape Regional Services Council when approving, in terms of Sections 25(1) and 42 of the said Ordinance, the subdivision of Erf 666, 667, and 4670, HOUT BAY.
In These Presents: The following words shall, unless the context otherwise requires, have the meanings hereinafter assigned to them: "Association” “Auditors” “Authority”
“Business Day” “Chairman” “Common Property” “Development” “Developer” “In Writing” “LUPO” “Member” “Month” “Office” “Registered Owner” “Special Resolution”
“These Presents” “A Trustee” “Trustee Committee” “Unit Erven”
means Berg-en-Dal Estate (incorporating Mountaindale Estate) Home Owners Association; means the Auditors of the Association; means the The City of Cape Town or any other local authority established or to be established to succeed in whole or in part such Municipality in exercising control over the local area of which the Development forms part; means weekdays other than Saturdays, Sundays and Public Holidays; means the Chairman of the Trustee Committee; means all areas excluded from Unit Erven; means the Unit Erven and the Common Property; means Mountaindale Developments (Proprietary) Limited and Mordal Property Developments (Proprietary) Limited; means, handwritten, typed, faxed & any electronic means of text communication and other modes of representing or producing words in a visible form; means the Land Use Planning Ordinance No 15 of 1985, as amended from time to time; means a Member of the Association; means calendar month; means the registered office of the Association; means the registered owner of a Unit Erf; means a resolution passed at a special general meeting of which not less than 21 clear days’ notice has been given specifying the intention to propose the resolution as a special resolution, the terms and effect of the resolution and the reasons for it, and passed at the aforesaid meeting by no fewer than three-fourths of the number of Members entitled to vote at that meeting who are represented in person or by proxy; means this constitution and regulations and by-laws of the Association from time to time in force; means a member of the Trustee Committee; means the Board of Trustees of the Association; means the residential erven resulting from the subdivision of Erven 666, 667 and 4670 Hout Bay, situate in the Local Division of Hout Bay, Cape Division, as well as the residential erven resulting from the subdivision of any adjoining or nearby property in respect of which the Developers or owners thereof decide to become part of the Association; means the Vice Chairman of the Trustee Committee;
Unless the context otherwise requires, any words importing the singular number only shall include the plural number and vice versa, and words importing any one gender shall include the other gender.
STATUS OF THE ASSOCIATION 3.1
The Association will: 3.1.1 3.1.2
have legal personality and be capable of suing and being sued in its own name; and not operate for profit, but for the benefit of the Members
No Member in his personal capacity shall have any right, title or interest in or to the funds or assets of the Association, all of which shall vest in and be controlled by the Trustees.
MAIN OBJECTS The Association shall have as its objects: 4.1
the matters referred to in Section 29(2)(b) and (c) of LUPO, and without detracting from the generality thereof, to ensure compliance with the conditions of sub-division imposed by the Authority when approving the Development and more specifically: 4.1.1 4.1.2
to oversee, maintain and control the private estate known as Berg-en-Dal; to promote, advance and protect the interests of the Members of the Association as the owners of Unit Erven;
the regulation, control and promotion of a high standard of building and improvements on the estate;
to administer and enforce the estate rules as established from time to time;
to ensure the maintenance, upkeep and upgrading where required, of services and amenities serving the estate such as, but not limited to, the sewage, water, electricity and stormwater systems, refuse collection, security fences, private roads, entrance buildings and any other buildings on Common Property;
to enforce compliance with the architectural and landscaping guidelines;
to take transfer of , and to maintain and insure where necessary, the Common Property and improvements thereon in the estate, and to control the usage thereof and of the services belonging to the Association or falling under its control;
the promotion of environmental sensitivity and awareness amongst Members;
to take action, including the imposition of fines or the institution of court proceedings in a court of law, as may be deemed fit by the Trustees, in relation to the non-compliance by any Member of any of the requirements of this constitution and the Association shall have the power to perform all such acts as may be necessary to carry out the aforegoing objects including, but not restricted to, the powers specifically embodied in this constitution;
the effective management and control of the financial affairs of the Association and the related accounting records.
FINANCIAL YEAR END The financial year end of the Association is the end of June of each year.
Membership of the Association shall be compulsory for every Registered Owner of a Unit Erf.
Membership of the Association shall be limited to the Registered Owners of the Unit Erven provided that where any such owner is more than one person, all the Registered Owners of that erf shall be deemed jointly and severally to be one Member of the Association and shall jointly have only one vote at all meetings of Members of the Association.
When a Member ceases to be the Registered Owner of a Unit Erf, he shall ipso facto cease to be a Member of the Association.
An owner of a Unit Erf may not at any time resign as a Member
Every Member shall comply with:
the provisions of this constitution, the estate rules and all other rules and regulations made or promulgated by the Association or the Trustees;
any agreement concluded by the Association or the Trustees insofar as such agreement may directly or indirectly impose rights or obligations on a Member;
the provisions contained within the architectural and landscaping guidelines;
any directive made or given by the Association, the Trustees or the estate manager in the enforcement of the provisions of this constitution
The rights and obligations of a Member are not transferable and every Member shall: 6.6.1
to the best of his ability further the objects and the interests of the Association;
observe all the directives made or given pursuant to the provisions of this constitution, and;
be jointly liable with the other Members for the expenditure incurred in connection with the Association
No Member shall let or otherwise part with the occupation of his erf, whether temporarily or otherwise, unless the proposed occupier has agreed to be bound by all the provisions of this constitution. The Member shall at all times remain bound by this constitution, subject to the provisions hereof, and will be required to ensure and procure compliance therewith by such occupier. The Member shall be liable for the acts or omissions of all persons lawfully occupying his erf including, without limitation, lessees, guests, employees, invitees, contractors or agents.
A Member shall not in any manner alienate or transfer a Unit Erf unless: 7.1.1
the proposed transferee has irrevocably bound himself to be become a Member of the Association and to observe the constitution, and any other regulations and rules of the Association as may be in force from time to time, for the duration of his ownership of the Unit Erf;
the Association has given its prior written consent thereto, which shall not be unreasonably withheld, and has issued a clearance that all amounts owing to the Association by such Member have been paid and that the Member is not in breach of any of the provisions of this constitution, the estate rules or the architectural and landscaping guidelines.
In the event that clauses 7.1.1 and 7.1.2 are not complied with for any reason, the transferee shall, notwithstanding anything to the contrary in These Presents, ipso facto become a Member of the Association immediately upon registration of the Unit Erf in his name.
The provisions of clause 7.1 shall apply mutatis mutandis to any alienation or transfer of an undivided share in a Unit Erf
Restrictions shall be registered against the title deeds of all the Unit Erven in the estate to give effect to the terms of this clause 7. Members shall however be bound by the provisions of this clause whether or not such restrictions are registered.
Each Member shall comply with all conditions imposed by the Authority or any other statutory body relating to a Unit Erf and shall be solely responsible for any non-compliance with such conditions.
The Trustee Committee shall from time to time charge levies upon the Members for the purpose of meeting all the expenses that the Association has incurred, or to which the Trustee Committee reasonably anticipates the Association will be put by way of maintenance, repair, replacement, improvement and keeping in good order and condition the Common Property, access roads over adjoining land conduits, pipelines and other areas and structures on adjoining land which is used by the Association, and/or for payment of all rates and other charges payable by the Association in respect of the Common Property and Unit Erven, and/or for the services rendered to it, and/or for payment of all expenses necessary or reasonably incurred in connection with the management of the Association, the Common Property and Unit Erven and the Association's affairs. In calculating levies the Trustee Committee shall take into account income, if any, earned by the Association.
The Trustee Committee shall estimate the amount which shall be required by the Association to meet the expenses during each year, together with such estimated deficiency, if any, as shall result from the preceding year, and shall make a levy upon the Members equal as nearly as is reasonably practical to such estimated amount. The Trustee Committee may include in such levies an amount to be held in reserve to meet anticipated future expenditure not of an annual nature, including a reserve for future capital expenditure. Every such levy shall be made payable by equal monthly instalments due in advance on the first day of each and every succeeding Month of such year.
The Trustee Committee may from time to time make special levies upon the Members in respect of any significant expenses not anticipated in terms of clauses 8.1 or 8.2, and such levies may be made in the sum or by such instalments and at such time or times as the Trustee Committee shall think fit.
Levies are payable in advance on or before the 7th day of every Month. Interest will be payable on any levies/monies due to the Association, which are unpaid by that day, at a rate of 3% above the prime rate.
Any amount due by a Member by way of a levy shall be a debt due by him to the Association. The obligation of a Member to pay a levy shall cease upon his ceasing to be a Member of the Association, without prejudice to the Association's right to recover arrear levies. No levies due and paid by a Member shall under any circumstances be repayable by the Association upon his ceasing to be a Member. A Member's successor in title to a Unit Erf shall be liable as from the date upon which he becomes a Member pursuant to the transfer of that erf, to pay the levy attributable to that erf. No Member shall transfer his Unit Erf until the Association has certified that the Member has at the date of transfer fulfilled all his financial obligations to the Association and the Association will not grant its consent until the Member has fulfilled all his aforesaid financial obligations to the Association.
The contribution to be paid by each Member each Month shall be that monthly amount allocated to his levy account at the time of adoption of this revised constitution. Any increase of the aggregate levy or any special levy that may be imposed by the Trustees of the Association from time to time shall be equally divided among all Registered Owners of all Unit Erven, and each Member's monthly levy shall be increased by the resulting amount.
No Member shall be entitled to any of the privileges of membership, including the right to use the Common Property or roads or services, unless and until he shall have paid every levy and other sum (if any) which shall be due and payable to the Association in respect of his membership thereof.
Notwithstanding the aforegoing, the aggregate levy imposed in any year shall not exceed by more than 25% that of the previous year without the sanction of a Special Resolution of the Association (and no Members shall be entitled to unreasonably vote against a Resolution proposing an increase) provided that the aforesaid limit shall not apply if it shall have the effect of the Association being unable to fulfil its main objects.
COSTS A Member shall be liable for and shall pay all legal costs, including costs as between attorney and own client, collections commission, expenses and charges incurred by the Association in recovering any arrear levy or other amounts due and owing to the Association. This includes the costs incurred in the enforcement of any of the estate rules or other rules or regulations issued or made by or on behalf of the Association from time to time.
DEALING WITH THE COMMON PROPERTY
Neither the whole nor any portion of the Common Property shall be: 10.1
sold, let, alienated, otherwise disposed of, subdivided or transferred; or
subjected to any rights, whether registered in a Deeds Registry or not, of use, occupation or servitude, other than the general servitude in favour of the controlling Authority for services, (save those enjoyed by the Members of the Association in terms hereof), without the sanction of a Special Resolution of the Association (and no Member shall be entitled to unreasonably vote against any such Special Resolution which may be proposed); or
built upon, improved or enhanced in value by the construction of buildings, erections, facilities or amenities, without the sanction of a Special Resolution and without the consent of the relevant Authority.
CONTRACTS AND REGULATIONS The Trustee Committee may from time to time make regulations governing, inter alia:
the Members' rights of use, occupation and enjoyment of the Common Property;
the number of persons who may occupy any Unit Erf;
the external appearance of and the maintenance of the dwellings, buildings or other improvements erected on the Unit Erven as well as the Common Property;
the height and type of trees on Unit Erven as well as on the Common Property.
Any Member who fails to make payment to the Association on due date thereof of any monthly levy or other amounts payable by such Member, or who otherwise breaches or fails in the observance of any of the provisions of These Presents, may, if so determined by a resolution passed by not less than 3 (three) of the Trustees present at a meeting of the Trustee Committee: 12.1.1 be fined by the Association; and/or 12.1.2 be ordered to pay to the Association or any Member or other person aggrieved by the breach or failure in question, such sum as compensation; and/or 12.1.3 be charged an administration fee and interest at 3% above the prime rate, as in each case shall have been determined at such Trustee Committee meeting.
The Member concerned shall be invited to attend such Trustee Committee meeting by notice In Writing delivered to such Member not less than 7 (seven) days prior to the holding thereof, and such Member shall be given the right to speak thereat, and to be represented legally, but not to be present at the voting or to take part in the proceedings other than as allowed by the Chairman of such meeting.
CESSATION OF MEMBERSHIP No Member ceasing to be a Member of the Association for any reason shall (nor shall any such Member's executors, curators, trustees or liquidators) have any claim upon or interest in the funds or other property of the Association, but this clause shall be without prejudice to the rights of the Association to claim from such Member or his estate any arrears of levies or other sums due from him to the Association at the time of his so ceasing to be a Member.
TRUSTEE COMMITTEE 14.1
There shall be a Board of the Trustees of the Association which shall consist of not more than 10 (ten) Members and not fewer than 6 (six) Members.
Every Trustee must be a Member of the Association. The spouse of a Trustee may also be a Trustee.
A Member shall only become eligible for election as a Trustee after residing on the estate for a period of six months.
REMOVAL AND ROTATION OF TRUSTEES 15.1
Save as set forth in clause 15.2 below, each Trustee shall continue to hold office until the annual general meeting following his said appointment, at which meeting each Trustee shall be deemed to have retired from office as such but will be eligible for re-election to the Trustee Committee at such meeting.
A Trustee shall be deemed to have vacated his office as such upon: 15.2.1 his estate being sequestrated, whether provisionally or finally, or his surrendering his estate; 15.2.2 his making any arrangement or compromise with his creditors; 15.2.3 his conviction for any offence involving dishonesty; 15.2.4 his becoming of unsound mind or being found lunatic; 15.2.5 his resigning from such office In Writing delivered to the Chairman; 15.2.6 his death; 15.2.7 his being removed from office by a Special Resolution of the Members, provided that anything done in the capacity of a Trustee in good faith, by a person who ceases to be a Trustee, shall be valid until the fact that he is no longer a Trustee has been recorded in the Minute Book of the Trustee Committee.
Upon any vacancy occurring on the Trustee Committee prior to the next annual general meeting, the vacancy in question shall be filled by a person nominated by those remaining for the time being on the Trustee Committee.
OFFICE OF TRUSTEE 16.1
Within 14 (fourteen) days of the holding of an annual general meeting, the Trustee Committee shall meet and shall elect from its own numbers the Chairman, Vice Chairman, treasurer and secretary, who shall hold their respective offices until the next annual general meeting, provided that these offices shall ipso facto be vacated by the Trustee holding such office upon his ceasing to be a Trustee for any reason. No one Trustee shall be appointed to more than one of the aforesaid offices. In the event of any vacancy occurring in any of the aforesaid offices at any time, the Trustee Committee shall immediately meet to appoint one of their number as a replacement in such office.
As an alternative to electing a secretary from its own numbers, the Trustee Committee may appoint the Managing Agent of the Association to this office.
Save as otherwise provided in These Presents, the Chairman shall preside at all meetings of the Trustee Committee and all general meetings of Members, and shall perform all duties incidental to the office of Chairman and such other duties as may be prescribed by the Trustee Committee or Members, and shall allow or refuse to permit invitees to speak at any such meetings, provided however that any such invitees shall not be entitled to vote at any such meetings.
The Vice Chairman shall assume the powers of the Chairman in the absence of the Chairman, or his inability or refusal to act as Chairman, and shall perform such other duties as may from time to time be assigned to him by the Chairman or the Trustee Committee.
The Trustees shall be entitled to be repaid all reasonable and bona fide expenses incurred by them respectively in or about the performance of their duties as Trustee and/or Chairman, Vice Chairman, treasurer or secretary as the case may be, but save as aforesaid, shall not be entitled to any other remuneration, fees or salary in respect of the performance of such duties.
FUNCTIONS AND POWERS OF THE TRUSTEE COMMITTEE 17.1
Subject to the express provisions of These Presents, the Trustee Committee shall manage and control the business and affairs of the Association, shall have full powers in the management and direction of such business and affairs and, save as may be expressly provided in These Presents, may exercise all such powers of the Association, and do all such acts on behalf of the Association as may be exercised and done by the Association and as are not by These Presents required to be exercised or done by the Association in general meeting, subject nevertheless to such regulations as may be prescribed by the Association in general meeting from time to time, provided that no regulation made by the Association in general meeting shall invalidate any prior act of the Trustee Committee which would have been valid if such regulation had not been made.
The Trustee Committee shall have the right to vary, cancel or modify any of its decisions and resolutions from time to time.
The Trustee Committee shall have the right to co-opt onto the Trustee Committee any Member or Members or the spouse of any Member or Members chosen by it. A co-opted Trustee shall enjoy all the rights and be subject to all the obligations of the Trustees.
The Trustee Committee may, should it so decide, investigate any suspected or alleged breach by any Member or Trustee of These Presents, in such reasonable manner as it shall decide from time to time.
The Trustee Committee may make regulations and rules not inconsistent with this constitution or any regulations or rules prescribed by the Association in general meeting: 17.5.1 as to disputes generally; 17.5.2 for the furtherance and promotion of any of the objects of the Association; 17.5.3 for the better management of the affairs of the Association; 17.5.4 for the advancement of the interest of Members; 17.5.5 for the conduct of Trustee Committee meetings and general meetings; and 17.5.6 to assist in the administering and governing its activities generally, and shall be entitled to cancel, vary or modify any of the same from time to time.
PROCEEDINGS OF THE TRUSTEE COMMITTEE 18.1
The Trustee Committee may meet for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit, subject to any provisions of These Presents.
Meetings of the Trustee Committee shall be held at least once every quarter, provided that if all the Trustees shall In Writing have waived the above requirement in respect of a particular quarter, then no meeting of the Trustee Committee need be held for that quarter.
The Trustees shall be given 7 (seven) days notice for a meeting. If a meeting is urgent then the Chairman may call a special meeting of Trustees provided that at least one-half of the Trustees attend.
The quorum necessary for the holding of any meeting of the Trustee Committee shall be one-half of the Trustees.
Any Trustee who has a direct or indirect interest in any contract, decision or transaction with the Association must disclose such interest to his fellow Trustees in advance of any related discussion. A Trustee with an interest as contemplated in this provision may participate in discussions pertaining thereto, but may not cast a vote in connection therewith.
The Chairman shall preside as such at all meetings of the Trustee Committee, provided that should at any meeting of the Trustee Committee the Chairman not be present within 5 (five) minutes after the time appointed for the holding thereof, then the Vice Chairman shall act as Chairman at such meeting, provided further that should the Vice Chairman also not be present within 5 (five) minutes of the time appointed for the holding of such meeting, those present of the Trustees shall vote to appoint a Chairman for the meeting, who shall thereupon exercise all the powers and duties of the Chairman in relation to such meeting.
The secretary shall take minutes of every Trustee Committee meeting, although not necessarily verbatim, which minutes shall be reduced to writing without undue delay after the meeting will have closed and shall then be certified correct by the Chairman of the meeting. All minutes of Trustee Committee meetings shall after certification as aforesaid be placed in the Trustee Committee minute book to be kept in accordance mutatis mutandis, with the provisions of the law relating to the keeping of minutes of meetings of directors of companies. The Trustee Committee minute book shall be open for inspection at all reasonable times by a Trustee, the Auditors, the Association Members and the Authority.
All competent resolutions recorded in the minutes of any Trustee Committee meeting shall be valid and of full force and effect as therein recorded, with effect from the passing of such resolutions and until varied or rescinded, but no resolution or purported resolution of the Trustee Committee shall be of any force or effect, or shall be binding upon the Members or any of the Trustees unless such resolution is competent within the powers of the Trustee Committee.
Save as otherwise provided in These Presents, the proceedings at any Trustee meeting shall be conducted in such reasonable manner and form as the Chairman of the meeting shall decide.
A resolution signed by all the Trustees shall be valid in all respects as if it had been duly passed at a meeting of the Trustee Committee duly convened.
GENERAL MEETINGS OF THE ASSOCIATION 19.1
The Association shall, within 6 (six) Months after the end of the financial year, hold an annual general meeting, in addition to any other general meetings during that year, and shall specify the meeting as such in the notices, in terms of clause 20.1 below. 19.1.1 Such annual general meeting shall be held at such time and place, subject to the aforegoing provisions, as the Trustee Committee shall decide from time to time.
All general meetings other than annual general meetings shall be called special general meetings.
The Trustee Committee, may, whenever they think fit, convene a special general meeting and shall convene a special general meeting if requested to do so In Writing by at least one-half of the Members of the Association.
NOTICE OF MEETINGS 20.1
An annual general meeting and a meeting called for the passing of a Special Resolution, shall be called by 21 (twenty-one) days' notice In Writing at the least, and a special general meeting, other than one called for the passing of a Special Resolution, shall be called by 14 (fourteen) days' notice In Writing at the least. In each case, the notice shall be exclusive of the day on which it is given, and shall specify the place, the day and the hour of the meeting and, in the case of special business, in addition to any other requirements contained in These Presents, the general nature of that business, and in the case of a Special Resolution, the terms and effect of the resolution and the reasons for it shall be given in the manner hereinafter mentioned or in such other manner, if any, as may be prescribed by the Trustee Committee to such persons as are under These Presents entitled to receive such notices from the Association, provided that a general meeting of the Association shall, notwithstanding that it is called by shorter notice than that specified in These Presents, be deemed to have been duly called if it is so agreed: 20.1.1 In the case of a meeting called as the annual general meeting, by all the Members entitled to attend and vote thereat; and 20.1.2 In the case of a special general meeting, by a majority in number of the Members having a right to attend and vote at the meeting, being a majority holding not less than 75% (seventy five percent) of the total voting rights of all Members.
The accidental omission to give notice of a meeting or of any resolution, or to give any other notification or present any document required to be given or sent in terms of These Presents, or the non-receipt of any such notice, notification or document by any Member or other person entitled to receive the same, shall not invalidate the proceedings at, or any resolution passed at, any meeting.
VENUE OF MEETINGS General meetings of the Association shall take place at such place(s) as shall be determined by the Trustee Committee from time to time.
No business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business. The quorum necessary for the holding of any general meeting shall, subject to the provisions of clause 22.2, be such of the Members entitled to vote, as together for the time being, represent one-half of the total votes of all Members of the Association entitled to vote, save that no fewer than 3 (three) Members must be personally present.
If within half an hour from the time appointed for the holding of a general meeting a quorum is not present, the meeting, if convened at the requisition of Members, shall be dissolved. In any other case it shall stand adjourned to the same day in the next week, at the same place and time, or at such other place as the Chairman of the meeting shall appoint, and if at such adjourned meeting a quorum is not present within half an hour from the time appointed for holding the meeting, the Members present shall be a quorum, save that no fewer than 3 (three) Members must be personally present.
AGENDA AT MEETINGS In addition to any other matters required by These Presents to be dealt with at an annual general meeting, the following matters shall be dealt with at every annual general meeting:
the consideration of the Chairman's report to the Members;
the election of the Trustee Committee;
the consideration of the financial statements of the Association for the last financial year preceding the date of such meeting;
the consideration of the report of the Auditors;
the consideration of the budgeted income and expenses of the Association for the next financial year;
the consideration and fixing of the remuneration of the Auditors for the financial year of the Association preceding the annual general meeting.
PROCEDURE AT GENERAL MEETINGS 24.1
The Chairman shall preside as such at all general meetings, provided that should he not be present within 5 (five) minutes after the time appointed for the holding thereof, then the Vice Chairman shall act as Chairman at such meeting, provided further that should the Vice Chairman also not be present within 5 (five) minutes of the time appointed for the holding of such meeting, then the Members present at such meeting entitled to vote, shall vote to appoint a Chairman for the meeting, who shall thereupon exercise all the powers and duties of the Chairman in relation to such meeting.
The Chairman may, with the consent of any general meeting at which a quorum is present (and if so directed by the meeting) adjourn a meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business that might have been transacted at the meeting from which the adjournment took place. Whenever a meeting is adjourned for ten days or more, notice of the adjourned meeting shall be given in the same manner as of an original meeting. Save as aforesaid, the Members shall not be entitled to any notice of adjournment, or of the business to be transacted at an adjourned meeting.
Except as otherwise set forth in These Presents, all general meetings shall be conducted in accordance with generally accepted practices.
A Member may be represented at a general meeting by a proxy, who need not be a Member of the Association. The instrument appointing a proxy shall be In Writing and signed by the Member concerned or his duly authorised agent, but need not be in any particular form. Provided that where a Member is more than one person, any one of those persons may sign the instrument appointing a proxy on such Member's behalf, where a Member is a company, the same may be signed by the chairman of the board of directors of the company or by its secretary, where a Member is an association of persons, by the secretary thereof, where a Member is a close corporation, by a member thereof, and where a Member is a trust by a trustee of the trust.
The instrument appointing a proxy and the Power of Attorney or other authority (if any) under which the said proxy is signed, or a notarially certified copy thereof, shall be deposited at the Office at least 48 hours before the time appointed for the commencement of the meeting, or adjourned meeting, at which the person named in the instrument is proposed to vote. No instrument appointing a proxy shall be valid after the expiration of 12 (twelve) Months from the date of its execution.
A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death of the principal or revocation of the proxy, provided that no intimation In Writing of the death or revocation shall have been received by the Trustee Committee at least one hour before the time appointed for the holding of the meeting.
At every general meeting every Member in person or by proxy and entitled to vote shall have one vote for each Unit Erf registered in his name, provided that if a Unit Erf is registered in more than one name, then they shall jointly have one vote.
Save as expressly provided for in These Presents, no person other than a Member duly registered, and who shall have paid every levy and other sum (if any) which shall be due and payable to the Association in respect of or arising out of his membership, and who is not under suspension, shall be entitled to be present or to vote on any question, either personally or by proxy, at any general meeting.
At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands, unless either prior to or on the declaration by the Chairman of the result of the show of hands, a ballot is demanded by any person entitled to vote at such meeting.
Notwithstanding the provisions of clause 25.2 aforesaid, voting on the election of a Chairman of a general meeting (if necessary) or on any question of adjournment, shall be decided on a show of hands by a majority of the Members present in person or by proxy, and entitled to vote.
Every resolution and every amendment of a resolution proposed for adoption by a general meeting shall be seconded at the meeting and, if not seconded, shall be deemed not to have been proposed.
An ordinary resolution (that is a resolution other than a Special Resolution), or the amendment of an ordinary resolution, shall be carried on a simple majority of all the votes cast thereon, and an abstention shall not be counted as a vote for or against the resolution in question. In the case of an equality of votes, whether on a show of hands or on a ballot, the Chairman of the general meeting shall be entitled to a casting vote in addition to his deliberate vote.
Unless any Member present in person or by proxy at a general meeting shall before closure of the meeting have objected to any declaration made by the Chairman of the meeting as to the result of any voting at the meeting, whether by show of hands or by ballot, or to the propriety or validity of the procedure at such meeting, such declaration by the Chairman shall be deemed to be a true and correct statement of the voting, and the meeting shall in all respects be deemed to have been properly and validly constituted and conducted, and an entry in the minutes to the effect that any motion has been carried or lost, with or without a record of the number of votes recorded in favour of or against such motion, shall be conclusive evidence of the vote so recorded if such entry conforms with the declaration made by the Chairman of the meeting as to the result of any voting at the meeting.
OTHER PROFESSIONAL OFFICERS Save as specifically provided otherwise in this constitution, the Trustee Committee shall at all times have the right to engage on behalf of the Association the services of accountants, auditors, attorneys, advocates, architects, engineers, any other professional person or firm and/or any other employee(s) whatsoever, for any reasons thought necessary by the Trustee Committee and on such terms as the Trustee Committee shall decide, subject to any of the provisions of These Presents, provided that any expenditure incurred in respect of the above shall not exceed 20% (twenty per centum) of the total annual levy for the year in question unless authorised by a Special Resolution.
The Association in general meeting, or the Trustee Committee, may from time to time make reasonable conditions and regulations as to the time and manner of the inspection by the Members of the accounts and books of the Association, or any of them, and subject to such conditions and regulations, the accounts and books of the Association shall be open to the inspection of Members at all reasonable times during normal business hours.
At each annual general meeting the Trustee Committee shall lay before the Association an income statement for the immediately preceding financial year of the Association, together with a balance sheet made up as at the end of such financial year. Every such balance sheet shall be accompanied by a report of the Auditors, and there shall be attached to the notice sent to Members convening each annual general meeting as set forth in clause 20.1 above, copies of such statement, balance sheet and report and of any other documents required by law to accompany the same.
AUDIT Every year the accounts and annual financial statements of the Association shall be examined and reported on by the Auditors appointed by the Trustees from time to time.
SERVICE OF NOTICE 30.1
A notice shall be In Writing and shall be given or served by the Association upon any Member, either personally, by post in a prepaid registered letter properly addressed to the Member at the address of the Unit Erf owned by him, or by e-mail transmission.
No Member shall be entitled to have a notice served on him at any address not within the Republic of South Africa, but any Member may require the Association, by notice, to record an address within the Republic of South Africa which shall be deemed to be his address for the purpose of the service of notices.
Any notice by post shall be deemed to have been served at the time when the letter containing the same was posted, and in proving the giving of the notice by post, it shall be sufficient to prove that the letter containing the notice was properly addressed and posted.
Any e-mail sent and delivered by the sender shall be deemed received by the recipient in terms of Section 11 of the Electronic Communications and Transactions Act unless the contrary is proved.
The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings of that meeting.
The Trustees, the Auditors and each manager, servant, agent or employee of the Association shall be and are hereby indemnified by the Association against any liabilities bona fide incurred by them in their respective capacities in the proper discharge of any of their duties including, without limitation, the costs of defending any proceedings, civil, criminal or otherwise, arising out of the due execution by them of their duties, and including all costs, losses and expenses (including travelling expenses), which they or any of them may incur or become liable for by reason of any contract entered into, or any act or omission, in the due discharge of any of their respective duties.
A Trustee shall not be liable for the act or omission of the Auditors or any of the other Trustees whether in their capacity as such or as Chairman, or for any loss sustained or incurred by the Association through the insuffiency or deficiency of any security in or upon which monies of the Association are invested, or for any loss or damage occasioned by any bona fide error of judgement or oversight on his part, or for any loss, damage or misfortune of whatsoever nature occurring in the execution of his duties in relation thereto, unless same shall have occurred as a result of mala fides, breach of duty or breach of trust.
PRIVILEGE IN RESPECT OF DEFAMATION Every Member of the Association and every Trustee shall be deemed by virtue of his membership or, as the case may be, his holding office as a Trustee, to have waived as against every other Member, the Trustee Committee, every other Trustee and everybody else engaged to perform any function or duty on behalf of or for the benefits of the Association, or the Trustee Committee, or any sub-committee, all claims and rights of action which such Member or Trustee might otherwise have had in law arising as a result of any statement, report, complaint or notice of or concerning such Member or Trustee, or any reference to such Member or Trustee, made at any Trustee Committee meeting or otherwise in the performance or exercising of any right, function, duty, power or trust within the ambit of These Presents, being a statement, report, complaint, notice or reference defamatory to such Member or Trustee, or otherwise injurious to the dignity, reputation, business or financial interest of such Member or Trustee, whether such statement be true or false.
In the event of a dispute, question or difference arising at any time between Members or between Members and Trustees out of or in regard to: 33.1.1 any matters arising out of this constitution; or 33.1.2 the rights and duties of any of the parties mentioned in this constitution; or 33.1.3 the interpretation of this constitution. either party shall be entitled to request in writing that an attempt be made to resolve the difference or dispute by way of mediation. The mediator shall be the nominee of the President for the time being of the Law Society of the Cape of Good Hope and the following procedure shall be adhered to:-
the party requesting mediation shall in such mediation request, stipulate the time and neutral place (which shall be in Cape Town) where such mediation is to take place which shall not be later than 30 (thirty) days after the date of the mediation request; 33.2.1 the requesting party shall ascertain who the mediator is to be and make all necessary arrangements with the mediator; 33.2.2 all the parties involved shall be obliged to attend the mediation and shall not be entitled to any representation; 33.2.3 the mediator shall in his absolute discretion determine the nature and format of the mediation with the sole aim of resolving the difference and/or dispute by way of negotiation as soon as possible; 33.2.4 the cost of the mediation as determined by the mediator shall be borne by the parties thereto in equal shares.
Should the parties be unable to resolve their difference or dispute, the matter in dispute shall be referred to arbitration in accordance with the succeeding provision 34 hereunder.
Any disputes, questions or differences arising at any time between Members or between Members and Trustees out of or in regard to: 34.1.1 any matters arising out of this constitution; or 34.1.2 the rights and duties of any of the parties mentioned in this constitution; or 34.1.3 the interpretation of this constitution, shall be submitted to and decided by arbitration on notice given by any party to the other interested parties, subject only to the provisions of clause 33 above.
Arbitration shall be held in Cape Town and in accordance with the provisions of the arbitration laws for the time being in force in the Republic of South Africa (as it is constituted from time to time), it being intended that if possible it shall be held and concluded within 21 (twenty-one) Business Days after it has been demanded.
Save as otherwise specifically provided herein, the arbitrator shall be, if the question in dispute is: 34.3.1 primarily an accounting matter â€“ an independent practising accountant of at least 10 years standing; 34.3.2 primarily a legal matter â€“ a practising counsel or attorney of not less than 10 years standing; 34.3.3 any other matter â€“ an independent and suitably qualified person appointed by the Auditors, as may be agreed upon between the parties to the dispute.
If agreement cannot be reached on whether the question in dispute falls under clause 34.3.1, 34.3.2 or 34.3.3 or upon a particular arbitrator in terms of clause 34.3 within 3 (three) Business Days after the arbitration has been demanded, then: 34.4.1 the President for the time being of the Law Society of the Cape of Good Hope shall determine whether the question in dispute falls under clause 34.3.1, 34.3.2 or 34.3.3; or 34.4.2 the President for the time being of the Law Society of the Cape of Good Hope shall nominate the arbitrator in terms of clause 33.3 within 7 (seven) Business Days after the parties have failed to agree so that the arbitration can be held and concluded as soon as possible within the 21 (twenty-one) Business Days referred to in clause 33.2.
The arbitrator shall make his award within 7 (seven) days after completion of the arbitration and shall, in giving his award, have regard to the principles laid down in terms of this constitution. The arbitrator may determine that the cost of the arbitration may be paid either by one or other of the disputing parties or by the Association as he in his sole discretion may deem fit.
The decision of the arbitrator shall be final and binding and may be made an order of the Cape Provincial Division of the Supreme Court of South Africa upon application of any party to the arbitration.
Notwithstanding anything to the contrary contained in clauses 34.2 to 34.6 inclusive, the Trustees shall be entitled to institute legal proceedings on behalf of the Association by way of application, action or otherwise in any Court having jurisdiction for the purposes of restraining or interdicting breaches of any of these provisions.
This constitution may be substituted, added to, amended or repealed from time to time by a Special Resolution passed by 75% of the Members of the Association who are entitled to vote and who are represented in person or by proxy at any annual or special general meeting, provided that the notice of the meeting shall detail the proposed substituted, added, amended or repealed clauses.
Any reference herein to this constitution shall mean and include a reference to this constitution as may from time to time be amended in accordance with the provisions of this clause 34.
DISSOLUTION Upon dissolution of the Association for whatever reason, the accumulated funds shall be distributed to the Members in proportion to the levies that they pay.
DOMICILIUM CITANDI ET EXECUTANDI For the purposes of delivering any official/legal notices or items of importance the registered address of the managing agents must be used: Trafalgar Property Management (Pty) Ltd. (www.trafalgar.co.za) 18 Lower Burg Street Cape Town 8001 Tel: 021 410 5500
FOR AND ON BEHALF OF THE BERG-EN-DAL ESTATE HOMEOWNERS ASSOCIATION Signed: